Report

Introduction

1. The Committee on Standards and Privileges has considered a report from the Northern Ireland Assembly Commissioner for Standards on his investigation into a complaint against Mr Alex Maskey MLA by Mr Peter Weir MLA. The Commissioner's report and the complaint are appended to this report.

The Complaint

2. Mr Weir's complaint referred to comments made by Mr Maskey on the UTV Live Tonight programme on 14 January 2013. That evening there had been serious public disorder in the Lower Newtownards Road area of Belfast, particularly at a so-called interface area beside the Short Strand. Mr Maskey was interviewed on the programme about the disorder. Mr Weir quoted Mr Maskey as saying during the programme that:

"What we've been hearing tonight is people from the Short Strand throwing stones back and, if they are, they're defending their homes.... If I lived in the Short Strand, I'd be throwing stones along with those people."

3. Mr Weir described the comments as wholly inappropriate for a Member of the Assembly. He argued that the invariable result of stone throwing would be injury to an individual or damage to property and that either outcome would constitute a criminal offence. Mr Weir asked for the comments to be investigated under the Code of Conduct, citing paragraphs relating to Public Duty, Leadership, Promoting Good Relations and Respect. Specifically, Mr Weir highlighted the following provision of the Code in relation to the principle of Promoting Good Relations:

"Members will act in a way that is conducive to promoting good relations by providing a positive example for the wider community to follow by acting justly and promoting a culture of respect for the law."

The Commissioner's investigation

4. As part of his investigation the Commissioner obtained a transcript of the full discussion on the UTV Live Tonight programme during which Mr Maskey made the comments which were the subject of the complaint. The Commissioner was provided with information from the PSNI about the disorder in the area that evening. He also received written evidence from Mr Maskey and subsequently interviewed him. The relevant documents in relation to all of this evidence are included within the Commissioner's report.

5. The Commissioner established a number of facts relating to what happened that evening and to the context of Mr Maskey's alleged comments. These are set out in paragraph 12 of the Commissioner's report. Among them is that at the time of the broadcast on 14 January Mr Maskey honestly believed that:

a loyalist crowd had thrown stones and petrol bombs at houses in the Short Strand resulting in two houses being set on fire;

the police were not present at the scene of the disorder;

some Short Strand residents had, in an attempt to protect their homes, thrown stones at the loyalist crowd;

in the absence of the police, the actions of the residents were necessary to protect their homes; and

these residents were acting within the law.

6. The Commissioner considered that the key issue in this complaint was whether the remarks in question were in breach of the public duty principle in the Code which states that Members have a duty to uphold the law and to act on all occasions in accordance with the public trust placed in them. The Commissioner stated that it was therefore crucial to determine whether the actions that Mr Maskey said he would have taken, in the given circumstances, would have amounted to a criminal act.

7. In order to inform his view on this matter, the Commissioner sought Counsel's opinion. Counsel's opinion is set out in document 6 of the Commissioner's report. In essence, the opinion states that even when the throwing of stones results in either personal injury or damage to property it does not invariably follow that there has been a criminal act. There is a defence, in prescribed circumstances, of prevention of crime and protection of property to a person prosecuted for throwing stones. Counsel advised that it was not possible to say determinatively that any of the defences engaged in the circumstances of this matter would definitely have succeeded if prosecution of the stone throwers had followed. Nonetheless it is Counsel's opinion that if a jury was satisfied that the residents had no other option to protect their homes but to throw stones, this would point towards the defences being successfully made out.

8. Given the facts established, and the advice received, the Commissioner was not satisfied that in the part of the interview that was the subject of the complaint Mr Maskey was condoning or supporting an act, namely stone throwing, that would, in the circumstances, have been criminal conduct. Consequently, the Commissioner was not satisfied that Mr Maskey failed to comply with his duty under the public duty principle to uphold the law.

9. The Commissioner also pointed out that on the same programme, before making the comments that were the subject of this complaint, Mr Maskey had said –

"... I don't want to see any person attacked, any police officer having a petrol bomb thrown at them and certainly no home owner or their family with a petrol bomb thrown at them or anybody throwing stones in the area. What I want to see is total calm brought to this area but let us be very clear this is going on a very dangerous turn and people with influence in that community need to stand up to the wreckers."

10. The Commissioner judged that when the comments that were the subject of this complaint were considered in the context of what else Mr Maskey had said on the programme, it was far from clear that Mr Maskey was supporting the throwing of stones.

11. In light of his conclusion that Mr Maskey had not breached the public duty principle, and the broader context in which Mr Maskey was speaking, the Commissioner considered Mr Maskey's comments against the other principles of the Code of Conduct cited by Mr Weir in his complaint. Having done so the Commissioner was not satisfied that there had been any breach of these principles.

12. The Commissioner concluded his report by stating that, although he had found that there had been no breach of the Code of Conduct by Mr Maskey, he felt constrained to observe that Mr Maskey's comments were far from prudent. The Commissioner acknowledged the context to the comments but suggested that the on-going tension should have put Mr Maskey on notice to choose his words with particular care and to avoid the use of language that was open to misunderstanding or misinterpretation.

The Committee's considerations

13. As per the Committee's usual procedure, Mr Maskey was provided with an advance copy of the Commissioner's report. Mr Maskey was informed that he was entitled to provide the Committee with his own comments in respect of any matter raised in the report. He was also informed that he could choose to appear before the Committee to make his comments in person and to answer any questions that members of the Committee may have had. Mr Maskey did not choose to either provide the Committee with comments in writing or to appear before the Committee.

14. The Committee on Standards and Privileges considered the report at its meetings on Wednesday 11 September (when the Commissioner presented his report to the Committee and answered members' questions) and Wednesday 18 September 2013.

15. The Committee has given careful consideration to the evidence gathered by the Commissioner and the reasoning behind his conclusions. The Committee has given particular consideration to the circumstances of the public disorder that evening, the broader context to Mr Maskey's comments and Counsel's opinion. Having taken all of these matters into consideration the Committee is satisfied that Mr Maskey has not breached the Code of Conduct. The complaint is not upheld.

16. While the Committee recognises that in the context that Mr Maskey made his remarks, and only in this context, he did not breach the Code of Conduct according to the letter of the law, it wishes to highlight the Commissioner's comments that Mr Maskey's comments "were far from prudent".

17. The Committee believes that the language used by Mr Maskey could have been interpreted by some as inflammatory and could have potentially exacerbated an already tense atmosphere at that time.

18. The Committee would therefore advise Mr Maskey, and all other Members, to exercise great caution in the language that they use when speaking as public representatives, particularly at times when public disorder is occurring or there is the risk that it might occur.